WRITS OF MANDATE A PRIMER ON TRADITIONAL AND ADMINISTRATIVE WRITS. Matthew T. Summers Colantuono, Highsmith & Whatley, PC

Transcription

1 WRITS OF MANDATE A PRIMER ON TRADITIONAL AND ADMINISTRATIVE WRITS Matthew T. Summers Colantuono, Highsmith & Whatley, PC

2 WHAT WE LL COVER Traditional vs. Administrative Standards of Review Basic Procedural Steps Preparation of Administrative Records

3 WHAT WE WON T COVER Appellate writs that challenge a trial court s decision.

4 WHAT DOES THAT MEAN? Agency Issues Decision Challenge decision in trial court Trial Court Issues Decision Challenge decision in court of appeal

5 WHAT IS A WRIT? Order from court to lower tribunal or officer to: Set aside decision To reconsider decision To take other action as directed

6 EXAMPLES Challenge DMV decision to suspend license Challenge planning commission approval/denial for development project Challenge local officer s failure to perform ministerial act

7 WHAT DOES A WRIT TRIAL LOOK LIKE? Administrative Writ trial Very much like a hearing on an MSJ Traditional Mandamus trial Varies

8 TRADITIONAL OR ADMINISTRATIVE? CCP 1085 Traditional Mandate CCP Administrative Mandate

9 CCP ADMINISTRATIVE APPLIES WHEN: Hearing is required by law; and Evidence is required to be taken; and Discretion to decide facts rests with administrative tribunal or officer

10 EXCEPTIONS Statute may provide for administrative review E.g., Welf. & Inst. Code 14171(j) Statue may provide other exclusive method for review E.g. Certain PUC decisions; WCAB decisions; Certain PERB decisions

11 PARTIES FOR ADMINISTRATIVE WRIT Petitioner is the aggrieved person or entity Respondent is typically agency, officer or board who issued final decision

12 PROCEDURE FOR ADMINISTRATIVE WRITS File Petition Must be verified Serve Petition like complaint and summons Decide whether to ask agency for record or prepare it yourself

13 STATUTE OF LIMITATIONS FOR ADMINISTRATIVE For most local agencies, 90 days after decision is final (CCP (b)) But if APA applies, then it s 30 days after last day for agency to order reconsideration. (Gov. Code 11523)

14 STATUTE OF LIMITATIONS FOR ADMINISTRATIVE ALWAYS check substantive area of law for other possible statutes of limitation

15 PROCEDURE FOR ADMINISTRATIVE WRITS (CON T) Once record is filed, proceed via noticed motion

16 PROCEDURE FOR ADMINISTRATIVE WRITS (CON T) What to include in brief: Description of decision Standard of review trial court should follow Why decision was wrong under that standard

17 ADMINISTRATIVE--GROUNDS Did Agency act without or in excess of jurisdiction? Was there a fair trial? Was there prejudicial abuse of discretion?

18 ADMINISTRATIVE EXCESS JURISDICTION Body or officer exceeded jurisdiction E.g., acted on application not before it

19 ADMINISTRATIVE FAIR TRIAL Procedural fairness Examples: Adequate notice Was decision maker biased

20 ADMINISTRATIVE ABUSE OF DISCRETION Did not proceed in the manner required by law; OR The decision is not supported by findings; OR The findings are not supported by evidence. (CCP (b))

21 STANDARDS OF REVIEW FOR ADMINISTRATIVE Independent Judgment Test Provided for by statute or if fundamental vested right involved Abuse of discretion is established if findings are not supported by the weight of evidence (CCP (c))

22 STANDARD OF REVIEW FOR ADMINISTRATIVE Substantial Evidence Test Abuse of discretion is established if findings are not supported by substantial evidence in light of the whole record. (CCP (c))

23 STANDARD OF REVIEW FOR ADMINISTRATIVE Substantial Evidence Test Exists when the record provides any reasonable factual basis for the findings Whether evidence might support another decision is irrelevant

24 STANDARD OF REVIEW FOR ADMINISTRATIVE Substantial Evidence Test Petitioner must present ALL evidence in the record and explain why it does not support the decision Petitioner cannot present only evidence favorable to it

25 TRADITIONAL MANDAMUS ELEMENTS Clear and present legal duty Petitioner has beneficial interest Other remedies inadequate

26 CLEAR AND PRESENT DUTY A duty resulting from an office, trust or station... (CCP 1085(a)) Often ministerial, but not always Duty must be owed now Cannot control discretion

27 BENEFICIAL INTEREST Petitioner must be beneficially interested (CCP 1086) That interest must be over and above public at large Such interest be lost over time

28 OTHER REMEDIES INADEQUATE Exhaust any available administrative remedies Petition may include claims for declaratory and injunctive relief

29 STATUTE OF LIMITATIONS FOR TRADITIONAL No one size fits all statute of limitation MUST consult governing statutory law at issue to identify applicable period

30 PROCEDURE FOR TRADITIONAL Petition must be verified If Petition is verified, Answer must be verified Exceptions Public agencies

31 PARTIES FOR TRADITIONAL Petitioner is the aggrieved person or entity Respondent is typically, agency or officer whose conduct is challenged Double check statutory scheme

32 PARTIES FOR TRADITIONAL (CON T) Real Parties in Interest must be named where appropriate If relief sought would affect the interest of 3 rd persons, they must be named

33 TWO METHODS FOR TRADITIONAL MANDAMUS Alternative Writ C.C.P Standard service of Petition C.C.P

34 SERVICE OF PETITION STEPS Serve Petition (and summons if required) on Respondent and Real Parties in Interest File proof of service with court

35 RESPONSE TO PETITION Response due 30 days after service (CCP ) EXCEPT, if administrative record must be filed, response is due 30 days after record is lodged or received

36 IF WRIT ISSUES Serve it on Respondent like summons and complaint Courts often require the agency to file a Return Petitioner can object to Return

37 WHAT CONSTITUTES THE RECORD

38 ADMINISTRATIVE MANDAMUS RECORDS Materials before the decision maker Certain extra-record evidence in limited cases Colantuono, Highsmith & Whatley, PC

39 ORDINARY MANDAMUS RECORDS No general statutory rule Use declarations or witnesses as needed Colantuono, Highsmith & Whatley, PC

40 PROCEDURE FOR RECORDS For Administrative Mandate, either: Request in writing agency prepare record C.C.P (c) Agency has 190 days to prepare it

41 Or, PROCEDURE FOR RECORDS Petitioner may elect to prepare the record

42 PROCEDURE FOR RECORDS ADMINISTRATIVE Agency can recover costs to prepare record from Petitioner Agency must certify the record regardless of who prepares it

43 CORRECTING THE RECORD Either Petitioner or Respondent may move to augment or strike portions of the record Done via noticed motion Often judges defer decision until time of trial

44 FINAL TIPS Some courts that see lots of writs have dedicated departments and procedures Examples L.A. Sacramento

45 ALWAYS CHECK LOCAL RULES Some courts that see lots of writs have dedicated departments and procedures L.A. Sacramento

46 L.A. COUNTY WRIT PRACTICE Assigned to one of the dedicated writ departments Typically, a status conference is held to discuss record preparation and briefing schedule

47 L.A. COUNTY WRIT PRACTICE Common in L.A. to agree to briefing schedule, but not required In absence of agreed or ordered schedule, standard notice provisions apply

48 RESOURCES CEB Guide: California Administrative Mandamus CEB Guide: Civil Writ Practice Witkin California Procedure

49 QUESTIONS Colantuono, Highsmith & Whatley, PC